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Historical Background And Scheme Of Civil Procedure Code 1908

Before 1859, there was no uniform codified law relating to procedure of civil courts in India. In those days the crown courts at presidency towns and the provincial courts at mofussils were governed by the different systems of civil procedures by certain rules, regulations and special acts as, applicable to them from time to time.

For the first time in 1859, uniform code of civil procedure was introduced with passing of the Civil Procedure Code (Act/VIII of 1859), but it did not serve the purpose since it was not applicable to the supreme courts (Crown Courts under the Royal Charter) and Sadar Diwani Adalats (Principal Courts under the Judicial Plan by the Governor General). After the passing of Indian High Courts Act, 1861, the Supreme courts and Sadar Adalats were abolished as in their place High Court were established in their place at Madras, Bombay and Calcutta and the code of 1859 was made applicable to high courts.

The code of 1859 was amended from time to time and was replaced with the passing of Code of Civil Procedure 1877. The Code of 1877 also was amended in 1878 and 1879. In 1882, the third Code of Civil Procedure was enacted. The Code of Civil procedure, 1882 also was amended several times and ultimately the present Code of Civil Procedure, 1908 was passed overshadowing the defects of the Code of 1882.

Meaning and Objects:
The law relating to the procedure of civil courts is regulated/ governed by the Code of Civil Procedure, 1908, the word 'Code' literally means, a systematic collection of statutes, body of law so arranged as to avoid inconsistency and overlapping.
  1. The main object of Code of Civil Procedure is to consolidate and amend the law relating to the procedure of civil courts in India.
  2. As such, it was enshrined in the preamble of the Code that it was enacted to consolidate and amend the laws relating to the procedure to the followed in court
  3. The civil courts having civil jurisdiction in India, it regulated the action in civil courts and the parties before it to the day of realization of its formity i.e. the execution of the decree and order
  4. In simple words, the aim of procedure law is to implement the principles of substantive law. It ensure fair justice by enforcing the rights and liability of the citizens.

Extent and application:
The Code of civil Procedure is passed in 1908 and come into force from 1st January 1909. The code extent to whole of India, except: the state of Nagaland and tribal areas; provided that the state government concerned may, be notification in the official gazette, extend the provision of this code or any of them to the whole or part of the state of Nagaland or such Tribal areas, as the case may be with such supplemental, incidental or consequential notifications as may be specified in the notification.

Scope of the Code:
The code is exhaustive on the matters specifically dealt with by it. However, it is not exhaustive on the points not specifically dealt with therein. The legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing procedure for them. With regard to those matters , the court has inherent power to act according to the principles of justice, equity and good conscience.

The Code specifically provides that:
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power to the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the courts.

The code is the general law. It does not affect the local or special law in force. In the event of any conflict between the Code and special law, the special law would be prevail. However the provision of the Code would prevail if the local or special law is silent.

Scheme of the Code: the code of Civil Procedure comprises of two parts:
  1. The body of the Code and;
  2. The Schedule.
The body of the code containing 158 sections divide into 12 parts forms the first part. The second part containing the rules and orders form the schedule. The first part i.e. the body lays down the principles relating to powers of the courts, while the second part i.e. the schedule provides for the procedure, method, manner and mode in which the jurisdiction of the courts may be exercised. Originally, there were five schedules I, II, III, IV and V. but the Schedule II, III, IV and V were replaced by the subsequent amendments of the Code. The first schedule contains 51 orders. Each order contains rules.

The number of rules vary from order to order. At the end of the rules, there are 8 appendices relating to Forms/Model Formats viz.
  1. Pleading (plaint and written statement)
  2. Process
  3. Discovery, Inspection and Admission
  4. Decree
  5. Execution
  6. Supplemental proceedings
  7. Appeal, Reference and Review and
  8. Miscellaneous.

Salient features of the Code: there are following features:
  1. The Code of Civil Procedure, 1908 is one of the most important branches of the procedural law and regulates the procedure to be adopted in all civil courts having jurisdiction in India. It came into force from 1st January 1909.
  2. It comprises of two parts viz. i) the body and; ii) the schedule. The body contains 158 sections divided into 12 parts constitutes the first part, while the schedule containing rules and orders form the second part. The schedule contains 51 orders. Each order contains rules.
  3. The Code is a territorial law. It extends to the whole of India except; the state of Nagaland and tribal areas; provided that the state government \concerned may, be notification in the official gazette, extend the provision of this code or any of them to the whole or part of the state of Nagaland.
  4. It is significant to note that the Code made the procedure in Civil Courts very simple for enforcement of rights, liabilities and obligations of the citizens. In other words, the code provides mechanism for enforcement of substantive rights.
  5. The code is the general law applicable to the proceedings of all civil courts without prejudice to the local or special law in force. In case of conflict, the special will prevail over the code. However, the provisions of the court shall apply if the local or special law is silent.
  6. The Code has been amended several times. It was amended more than 30 times during 1909- 1976. Recently it was amended in 1999
    and 2002 vide the Court of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002.

The acts of 1999 and 2002 i.e. the Code of Civil Procedure Amendment (Act), 1999 and the Code of Civil Procedure (Amendment) Act, 2002 came into force on the same day. The 1st July 2002.

The main object of the Acts is to ensure fair justice by eliminating inordinate delay in disposal of the cases:
  1. Summons served to the defendant within 30 days from the date of filing of the suit.
  2. The defendant through summons is required to appear before the Court and answer the claim and submit file written statement 30 days. However, the Court may extend the period of filing written statement upto 90 days.
  3. The penalty for default/ denial/non-appearance in response to the summon has been enhanced upto Rs. 5,000/-
  4. If the decree for the payment of money is not executed, the judgment debtor may be detained in civil prison for a period not exceeding three months if the decree is for the payment of a sum exceeding Rs. 5,000/-. The period of such detention is upto six months if the amount payable is above 2,000/- and below 5,000/- and no order for the detention in the civil prison in respect of the default upto Rs. 2,000/-.
  5. With regard to attachment in execution of a decree, salary upto 1,000/- and two thirds of the remaining salary beyond Rs. 1,000/- shall not be liable to attachment.
  6. Provision has been made for settlements of disputes outside the Courts viz. Arbitration, conciliation, Mediation, Lok adalats etc.
  7. Provisions has been made to provide compensation upto Rs. 50,000/- to the defendant for the expenses incurred, loss or injury included the loss of reputation caused to him against his arrest or attachment of his property.
  8. With regard to provision for the appeal:
    1. No appeal shall lie against the decree or order if the subject matter of the original suit does not exceed Rs. 1,000/-
    2. Where an appeal is heard and decided by a single judge of a High Court from an original or appellate decree or order, no further appeal shall be lie.
    3. No second appeal shall lie from any decree if the subject matter of the original suit is for recovery of money not exceeding Rs. 25,000/-.
  9. The court may adjourn the framing of issues for a period not exceeding seven days, while examining the witnesses or examining the documents presented before the court.
  10. A party to the suit shall not be granted more than three adjournments during the hearing of the suit.
  11. When a judge is not pronounced at once, the Court shall endeavour to pronounce the judgment within 30 days from the date of conclusion of the hearing. However, in certain exceptional or under extraordinary circumstances, the court may fix a day beyond 30 days but before 60 days from the date of conclusion of the hearing.

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